United States Court of Appeals

Fifth Circuit



## FILED

October 19, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 04-10245

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In Re: Yokamon Laneal HEARN , Movant.

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No. 04-70010

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Yokamon Laneal Hearn,

Petitioner-Appellant,

v.

Doug Dretke, Director, Texas Department of

Criminal Justice, Correctional

Institutions Division,

Respondent-Appellee.

Transfer Order from the United States District

Court and Appeal from the United States District Court

from the Northern District of Texas

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ORDER ON REHEARING

(Opinion 7/6/04, 5th Cir., 376 F.3d 447)

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

The petition for panel rehearing is DENIE D, and no judge in regular active service having

r equested that the court be polled on rehearing en banc, the petition for rehearing en banc i s

DENIED. The court, having considered the request for rehearing, clarifies the panel o pinion as

follows:2

1. The panel decision is limited to a petitioner who:

(i) has already filed state and federal petitions;

(ii) presently lacks §848(q)(4)(B) counsel;

(iii) may have a §2244(b)(2)(A) claim based on the previously unavailab le, new

Supreme Court rule in Atkins ; and

(iv) to whom Atkins may apply.

2. Consequently, this decision d o es no t imply that all defendants are entitled to

§848(q)(4)(B) counsel for a ll successive habeas actions. McFarland v. Scott

, 512

U.S. 849 (1994), must be harmonized with Congress’s later determination in AEDPA

that the gro unds for successive habeas petitions are narrowly circumscribed. C f.

Cantu-Tzin v. Johnson , l62 F.3d 295, 296 (5th Cir. 1998) ( “neither McFarland nor

§848(q)(4)(B) requires appointment of counsel for the whol ly fut ile enterprise of

addressing the merits of a time-barred habeas petition”).

3. Equitable tolling app l ies in this case because of the combination of the problem

created by the Texas two-forum rule, which Texas has overturned, and the withdrawal

of petitioner’s counsel.

4. This is a fact-bound case. In the ordinary case, e .g., In re Holladay , 331 F.3d 1169

( 11t h Cir. 2003), where the issue of mental retardation was explored at trial for

Penry mitigation purposes, there will likely be a state court record from which to

determine whether a prima facie case of mental retardati on exists. Counsel may be

appointed for a successive petition, but the appointment alone does not grant capital

defendants a right to a n automatic stay of execution. McFarland, 512 U.S. at 858.3 Under such circumstance s, t he defendant will have sufficient time to file a petition

conforming to the prima facie standard mandated by 28 U.S.C. 2244(b)(3)(C) prior

to his scheduled execution. A federal court need not grant a state where a dilatory

capital defendant ignores this opportuni ty to file t imely and flouts th e available

processes. Id.

5. As the panel

o pinio n made clear, while Hearn made a colorable showing of

entitlement to §848(q)(4)(B) counse l fo r t he limited purpose of investigating and

preparing his successive habeas petition, we have not decided the merits of his claim

of mental retardation.

Jerry E. Smith, Circuit Judge, dissenting from the denial of panel rehearing:

I respectfully dissent from the denial of rehearing. Although I appreciate the majority's

well-meaning effort to address portions of its init ial opinion, Hearn v. Dretke ( In re Hearn ), 376 F.3d

447 (5th Cir. 2004), the majority’s clarifications, which are general l y helpful, do not cure the

fundamental deficiencies on which I focused in dissent, id. at 459-71 (Smith, J., dissenting).

Fortunately, in its order on rehearing, the majority states that “[t]his is a fact-bound case” and

that “[t]he facts of this case do not presently demonstrate that Hearn ‘is in fact mentally retarded.’”

Unfortunately, however, the majority still clings to its noti o n t hat “Hearn has made a colorable

showing of entitlement to . . . counsel.”

The majority seems now to recognize that once newly-appointed counsel has presented his

o r her case for Hearn on remand, the district court will surely find that Hearn meets none of the

standards for retardati on and will deny relief. As Judge Higginbotham observed, “If there is nothing4

there, as the dissent seems to know, the district court will so conclude.” I d. at 459 (Higginbotham,

J., concurring).

The majority’s clarification somewhat explains t he majority’s assertion that this petitioner,

having shown no substantial facts in support of retardation, is nonetheless entitled to counsel. The

majority’s position on retardati on remains in error, but at least there is a way of understanding how

the majority can attempt to justify appointing counsel in a c ase such as this, where the attempted

showing of retardation is meritless if not downright disingenuous.

I respectfully dissent.